U.S. v. Young, Criminal Action No. 03-20116-01-KHV.

• Decision Date: 03 June 2008
• Docket Number: Criminal Action No. 03-20116-01-KHV.
• Citation: 557 F.Supp.2d 1216
• Court: U.S. District Court — District of Kansas
• Parties: UNITED STATES of America, Plaintiff, v. William YOUNG, Defendant.

557 F.Supp.2d 1216

UNITED STATES of America, Plaintiff, v. William YOUNG, Defendant.

Criminal Action No. 03-20116-01-KHV.

United States District Court, D. Kansas.

June 3, 2008.

COPYRIGHT MATERIAL OMITTED

Mark L. Bennett, Jr., Bennett & Hendrix, LLP, Topeka, KS, for Defendant.

MEMORANDUM AND ORDER

KATHRYN H. VRATIL, District Judge.

This matter is before the Court on defendant's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside Or Correct Sentence By Person In Federal Custody (Doc. # 120) filed December 21, 2007 and defendant's Motion To Amend [And For Appointment Of Counsel] (Doc. # 123) filed March 20, 2008. For reasons stated below, the Court overrules defendant's motions.

Factual Background

On August 21, 2003, a grand jury returned a six-count indictment which, in part, charged defendant with conspiracy to distribute and possess with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. See Indictment (Doc. # 1). Defendant pled guilty to that charge. The Court determined that defendant was a career offender under U.S.S.G. § 4B1.1(a) because (1) in this case, he was convicted of a controlled substance offense, and (2) he had a prior conviction for a crime of violence — attempted aggravated battery — and a prior conviction for a controlled substance offense.¹ Defendant's total offense level was 29, with a criminal history category VI, resulting in a sentencing range of 151 to 188 months. On March 8, 2004, the Court sentenced defendant to 151 months in prison.

On January 25, 2005, defendant filed his first motion under 28 U.S.C. § 2255. Defendant claimed that his conviction should be vacated because counsel was ineffective in not filing an appeal to argue that (1) the government breached the plea agreement at sentencing and (2) defendant's plea was not supported by sufficient evidence and was involuntary. See Motion To Vacate (Doc. # 66) at 10. On June 6, 2005, the Court held an evidentiary hearing on defendant's motion.² On June 10, 2005, the Court sustained defendant's Section 2255 motion in part, vacated the judgment of March 11, 2004, and directed the clerk to reenter judgment on the same conditions as the previous judgment so that defendant could file a timely notice of appeal. The Tenth Circuit considered defendant's appeal as a direct appeal of his conviction, but it granted the government's motion to enforce the plea agreement waiver of appeal. See United States v. Young, 206 Fed. Appx. 779 (10th Cir.2006).

On December 21, 2007, defendant filed a second motion to vacate his sentence under 28 U.S.C. § 2255.³ Liberally construed, defendant's Section 2255 motion alleges that (1) defense counsel was ineffective because he did not inform defendant that he was a career offender under the Sentencing Guidelines; (2) defense counsel was ineffective because he did not object to use of defendant's prior conviction, which resulted in a sentence of less than one year, in applying the career offender provision; and (3) the district court erred in applying the career offender provision by considering defendant's prior conviction for attempted aggravated battery which resulted in a sentence of less than one year. In his Section 2255 motion and also his motion to amend, which refers to 18 U.S.C. § 3582(c)(2), defendant asserts that his sentence should be reduced under the recent amendments to the Sentencing Guidelines which involve crack cocaine offenses.

Analysis

The standard of review of Section 2255 petitions is quite stringent. The Court presumes that the proceedings which led to defendant's conviction were correct. See Klein v. United States, 880 F.2d 250, 253 (10th Cir.1989). To prevail, defendant must show a defect in the proceedings which resulted in a "complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974).

I. Procedural Bar — Waiver Of Collateral Challenges (Claims 2 and 3)

A knowing and voluntary waiver of the statutory right to appeal or to collaterally attack a sentence is generally enforceable. United States v. Chavez-Salais, 337 F.3d 1170, 1172 (10th Cir.2003); United States v. Cockerham, 237 F.3d 1179, 1181 (10th Cir.2001), cert. denied 534 U.S. 1085, 122 S.Ct. 821, 151 L.Ed.2d 703 (2002); United States v. Hernandez, 134 F.3d 1435, 1437 (10th Cir.1998). The Court applies a three-pronged analysis to evaluate the enforceability of such a waiver: (1) whether the disputed issue falls within the scope of the waiver; (2) whether defendant knowingly and voluntarily waived his rights; and (3) whether enforcing the waiver would result in a miscarriage of justice. United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir.2004) (en banc); see United States v. McMillon, No. 02-20062-01-JWL, 2004 WL 2660641, at *3 (D.Kan. Nov. 19, 2004).

A. Scope of the Waiver

To determine whether the disputed issue falls within the scope of the waiver, the Court begins with the plain language of the plea agreement. United States v. Anderson, 374 F.3d 955, 957 (10th Cir.2004); Hahn, 359 F.3d at 1328. The Court construes the plea agreement according to contract principles and based on what defendant reasonably understood when he entered the plea. United States v. Arevalo-Jimenez, 372 F.3d 1204, 1206 (10th Cir.2004). The Court strictly construes the waiver and resolves any ambiguities against the government and in favor of defendant. Hahn, 359 F.3d at 1343.

The plea agreement states in relevant part as follows:

11. Waiver of Appeal and Collateral Attack. Defendant knowingly and voluntarily waives any right to appeal or collaterally attack any matter in connection with this prosecution, conviction and sentence. The defendant is aware that Title 18, U.S.C. § 3742 affords a defendant the right to appeal the conviction and sentence imposed. By entering into this agreement, the defendant knowingly waives any right to appeal a sentence imposed which is within the guideline range determined appropriate by the court. The defendant also waives any right to challenge a sentence or manner in which it was determined in any collateral attack, including, but not limited to, a motion brought under Title 28, U.S.C. § 2255 [except as limited by United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir.2001) ]. In other words, the defendant waives the right to appeal the sentence imposed in this case except to the extent, if any, the court departs upwards from the applicable sentencing guideline range determined by the court. However, if the United States exercises its right to appeal the sentence imposed as authorized by Title 18, U.S.C. § 3742(b), then the defendant is released from this waiver and may appeal the sentence as authorized by Title 18, U.S.C. § 3742(a).

Plea Agreement ¶ 11. The scope of this waiver unambiguously includes the right to collaterally attack by a Section 2255 motion any matter in connection with defendant's conviction or sentence. In Cockerham, the Tenth Circuit noted that "a plea agreement waiver of postconviction rights does not waive the right to bring a § 2255 petition based on ineffective assistance of counsel claims challenging the validity of the plea or the waiver," but that "collateral attacks based on ineffective assistance of counsel claims that are characterized as falling outside that category are waivable." 237 F.3d at 1187. In this case, defendant's second and third claims do not challenge the validity of the plea or waiver. Accordingly, such claims fall within the scope of the waiver in the plea agreement. See id.

B. Knowing And Voluntary Nature Of The Plea

To ascertain whether defendant knowingly and voluntarily waived his rights, the Court evaluates the language of the plea agreement and the plea petition, and the Rule 11 colloquy. Hahn, 359 F.3d at 1325. Here, the Tenth Circuit concluded that defendant's plea was knowing and voluntary. See Young, 206 Fed. Appx. at 785. In particular, the Tenth Circuit stated as follows:

Additionally, a review of the plea colloquy demonstrates that Young understood the rights he was waiving and the terms of the plea agreement and that the court would review his past criminal record in arriving at a sentence. Young indicated that he knew the consequences of a guilty plea and that he was satisfied with his counsel's representation. The court explained that its final calculation of Young's sentence could differ from any calculation made by Young's attorney and that anything discovered during the presentence investigation could have a "big effect," unanticipated by counsel, on Young's final sentence. The court also made it clear to Young that by waiving his appeal rights, if a disagreement ensued about which sentencing guidelines apply, he would be unable to do anything about it and that, ultimately, the court was not bound in any way by the suggestions agreed upon in the agreement. When asked, Young responded that he understood that the court could take into account many things at sentencing, including his past criminal record and his role in the offense relative to the roles others played.

Id. (footnote omitted). In sum, the language of the plea agreement, the plea petition and the Rule 11 colloquy leaves "no doubt" that defendant's plea and waiver of his rights was knowing and voluntary. Id.

C. Miscarriage Of Justice

The Court must "determine whether enforcing the waiver will result in a miscarriage of justice." Hahn, 359 F.3d at 1327. This test is not met unless (1) the district court relied on an impermissible factor such as race; (2) defendant received ineffective assistance of counsel in conjunction with negotiation of the waiver; (3) the sentence exceeds the statutory maximum; or (4) the waiver is otherwise unlawful in the sense that it suffers from error that seriously affects the fairness, integrity or public reputation of judicial proceedings. Id. Defendant bears the burden of demonstrating that the waiver results in a...